State of Hawaii v. Trump

Filing 143

MOTION for Leave to File Amicus Curiae brief of the American Center for Law and Justice Robert K. Matsumoto appearing for Amicus American Center for Law and Justice (Attachments: # 1 Memorandum of law supporting motion, # 2 Declaration of Attorney Robert K. Matsumoto, # 3 Proposed Amicus Curiae Brief of the ACLJ, # 4 Certificate of Service)(Matsumoto, Robert)

ROBERT K. MATSUMOTO
Hawaii Bar No. 1330
345 Queen Street, Suite 701
Honolulu, Hawaii 96813
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for amicus curiae

JAY ALAN SEKULOW*
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
* Not admitted in this jurisdiction

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII and
ISMAIL ELSHIKH,

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Plaintiffs,
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v.
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DONALD J. TRUMP, in his official
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capacity as President of the United
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States, et al.,
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Defendants.
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_________________________________ |

CASE NO. 1:17-cv-50-DKW-KJM
AMERICAN CENTER FOR LAW
& JUSTICE’S MEMORANDUM OF
LAW SUPPORTING ITS MOTION
FOR LEAVE TO FILE AMICUS
CURIAE BRIEF

AMERICAN CENTER FOR LAW & JUSTICE’S
MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
SUPPORTING DEFENDANTS

Additional Counsel
STUART J. ROTH*
COLBY M. MAY*
ANDREW J. EKONOMOU*
JORDAN SEKULOW*
CRAIG L. PARSHALL*
MATTHEW R. CLARK*
BENJAMIN P. SISNEY*
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel.: [phone]
Fax: [phone]
EDWARD L. WHITE III*
ERIK M. ZIMMERMAN*
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Tel.: [phone]
Fax: [phone]

FRANCIS J. MANION*
GEOFFREY R. SURTEES*
AMERICAN CENTER FOR LAW
AND JUSTICE
6375 New Hope Road
New Hope, Kentucky 40052
Tel.: [phone]
Fax: [phone]

* Not admitted in this jurisdiction
Counsel for amicus curiae

The American Center for Law & Justice (“ACLJ”) respectfully submits this
memorandum of law supporting its motion for leave to file the attached proposed
amicus curiae brief (Exhibit B) in support of Defendants’ opposition to Plaintiffs’
motion for a temporary restraining order.1
I.

DISTRICT COURTS HAVE AUTHORITY TO ACCEPT AMICUS
CURIAE BRIEFS.
District courts have broad discretion regarding the appointment of an amicus

curiae. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). Amicus briefs are
“frequently welcome” in district courts, especially when “the amicus has ‘unique
information or perspective that can help the court beyond the help that the lawyers
for the parties are able to provide.’” NGV Gaming, Ltd. v. Upstream Point Molate,
LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246
F.Supp.2d 59, 62 (D.D.C. 2003)). This assistance to the court is helpful “in case[s]
of general public interest,” and “supplements the efforts of counsel, and draws the
court’s attention to law that escaped consideration.” Miller-Wohl Co. v. Comm’r of
Labor & Indus. State of Mont., 694 F.2d 203, 204 (9th Cir. 1982). The case before
this Court implicates issues of general public interest. The proper resolution of this
case is a matter of utmost concern to the ACLJ because of its impact on the
integrity of the Constitutional process and the safety of American citizens, many of
1

No party to the case drafted any portion of the ACLJ’s amicus curiae brief, and
no one other than amicus curiae, its members, or its counsel paid for the
preparation or submission of the brief.
1

whom are ACLJ members. In the past, this Court has granted non-profit
organizations, similar to the ACLJ, leave to participate as amici. See Fisher v.
Kealoha, 976 F. Supp. 2d 1200, 1203 (D. Hawaii 2013).
II.

INTEREST OF THE MOVANT
The ACLJ is an organization dedicated to the defense of constitutional

liberties secured by law. Counsel for the ACLJ have presented oral argument,
represented parties, and submitted amicus briefs before the United States Supreme
Court and numerous state and federal courts around the country in cases
concerning the First Amendment and immigration law, including FEC v.
Wisconsin Right to Life, 551 U.S. 449 (2007), McConnell v. FEC, 540 U.S. 93
(2003), and United States v. Texas, 136 S. Ct. 2271 (2016). The ACLJ has been
active in advocacy and litigation concerning the need for protecting the
Constitution, the separation of powers, and the immigration laws in place that
protect American citizens from harm. The ACLJ believes it can offer this Court
information or perspective that will assist it in deciding the pending issues. The
ACLJ respectfully submits that its participation as amicus curiae will aid the Court
in resolving this case.
III.

MOVANT’S BRIEF IS TIMELY AND USEFUL
DISPOSITION OF THE ISSUES BEFORE THE COURT.

TO

THE

The ACLJ has submitted its motion and proposed amicus brief within the
timeframe for the filing of Defendants’ opposition to Plaintiffs’ motion for a
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temporary restraining order. Dkt. # 60. Thus, the ACLJ asks this Court to accept
its motion and brief as timely filed.
The issues presented before this Court are complex matters of constitutional
and national security law. The ACLJ’s team of constitutional lawyers is uniquely
situated to provide insight into the matters now before this Court. In the following
respects, the attached, proposed amicus curiae brief will provide this Court with
unique or helpful information:
1. The brief explains that this case is not a standard Establishment Clause
case wherein the Court examines the primary purpose and effect of the
government’s actions. Rather, this case involves the special context of a
presidential executive order (“EO”), enacted pursuant to the President’s
constitutional and statutory authority, concerning the admission of aliens into the
United States from six unstable and terrorism-infested countries of particular
concern.2 When the Supreme Court has considered constitutional challenges to

2

See, e.g., 8 U.S.C. § 1187(a)(12) (terrorist areas of concern include Syria and
other countries that the Secretary of Homeland Security designates); U.S. Dep’t of
State,
Country
Reports
on
Terrorism
2015,
June
2016,
https://www.state.gov/documents/organization/258249.pdf,
at
pp.
11-12
(discussing terrorism in Somalia), pp. 165-66 (describing Syria, Libya, and Yemen
as primary theaters of terrorist activities), pp. 299-302 (designating Iran, Sudan,
and Syria as state sponsors of terrorism); Dep’t of Homeland Security, United
States Begins Implementation of Changes to the Visa Waiver Program (Jan. 21,
2016),
https://preview.dhs.gov/news/2016/01/21/united-states-beginsimplementation-changes-visa-waiver-program, and DHS Announces Further
Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016),
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immigration-related actions of this sort, it has declined to subject those actions to
the same level of scrutiny applied to non-immigration-related actions. As the
Supreme Court has held, “when the Executive exercises [the power to exclude an
alien] on the basis of a facially legitimate and bona fide reason, the courts will
neither look behind the exercise of that discretion, nor test it by balancing its
justification against” opposing interests. Kleindienst v. Mandel, 408 U.S. 753, 770
(1972). The EO, which pauses the entry of immigrants from these countries of
concern, for the legitimate purpose of allowing time for needed improvements to
the immigration and refugee screening process, is valid under the governing
standard of review.
2.

Even if the EO were subjected to traditional Establishment Clause

analysis, which it should not, it still passes constitutional muster. The EO satisfies
the “purpose prong” of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), by
furthering the secular purpose of protecting national security. Moreover, Plaintiffs’
attempt to sidestep the EO’s obvious secular purpose by focusing on miscellaneous
https://preview.dhs.gov/news/2016/02/18/dhs-announces-further-travelrestrictions-visa-waiver-program (explaining that most nationals of Visa Waiver
Program countries who are also nationals of Iran, Sudan, or Syria, or who visited
those countries or Libya, Somalia, or Yemen on or after March 1, 2011, are
ineligible to be admitted to the U.S. under the Program); Testimony of DHS Deputy
Assistant Secretary for Counterterrorism Policy Tom Warrick, H. Comm. on
Foreign Affairs, Dec. 2, 2014, https://www.dhs.gov/news/2014/12/02/writtentestimony-dhs-deputy-assistant-secretary-counterterrorism-policy-house
(discussing DHS’s efforts to protect the U.S. from terrorists operating out of Syria
including those who may seek to attack the U.S.).
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comments made by then-candidate Trump, or by his advisors, is flawed for at least
three reasons.
 The Supreme Court has emphasized, in the context of legislative
enactments, that “what is relevant is the legislative purpose of the statute, not the
possibly religious motives of the legislators who enacted the law.” Bd. of Educ. v.
Mergens, 496 U.S. 226, 249 (1990) (plurality opinion). The EO, on its face, serves
the secular purpose of protecting national security.
 Miscellaneous comments by a candidate for public office, or his or her
proxies, while on the campaign trail and as a private citizen(s) do not constitute
“contemporaneous legislative history” or official acts. See McCreary Cnty. v.
ACLU, 545 U.S. 844, 862 (2005). Indeed, “one would be naive not to recognize
that campaign promises are—by long democratic tradition—the least binding form
of human commitment.” Republican Party of Minn. v. White, 536 U.S. 765, 780
(2002).
 The mere suggestion of a possible religious or anti-religious motive,
mined from past comments of a political candidate or his supporters is not enough
to doom government action. The Supreme Court has explained that “all that Lemon
requires” is that government action have “a secular purpose,” not that its purpose
be “exclusively secular,” and a policy is invalid under this test only if it “was

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motivated wholly by religious considerations.”3 The EO clearly serves a secular
purpose and satisfies Lemon’s purpose test. The secular purpose of the EO—
protecting our national security—is genuine and is not a “sham” as Plaintiffs
wrongfully contend.
IV.

CONCLUSION
The ACLJ respectfully requests that this Court grant its motion, allow it to

participate as amicus curiae, and accept for filing its attached amicus curiae brief.
Dated: March 13, 2017.
JAY ALAN SEKULOW*
STUART J. ROTH*
COLBY M. MAY*
ANDREW J. EKONOMOU*
JORDAN SEKULOW*
CRAIG L. PARSHALL*
MATTHEW R. CLARK*
BENJAMIN P. SISNEY*
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel.: [phone]
Fax: [phone]
Email: [e-mail]

Respectfully submitted,
/s/ Robert K. Matsumoto
ROBERT K. MATSUMOTO
Hawaii Bar No. 1330
345 Queen Street, Suite 701
Honolulu, Hawaii 96813
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
FRANCIS J. MANION*
GEOFFREY R. SURTEES*
AMERICAN CENTER FOR LAW
AND JUSTICE
6375 New Hope Road
New Hope, Kentucky 40052
Tel.: [phone]
Fax: [phone]

3

Lynch v. Donnelly, 465 U.S. 668, 680-81 & n.6 (1984) (emphasis added); see also
Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer, J.) (upholding government
action that “serv[ed] a mixed but primarily nonreligious purpose”); Bowen v.
Kendrick, 487 U.S. 589, 602 (1988) (“[A] court may invalidate a statute only if it is
motivated wholly by an impermissible purpose.”).
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EDWARD L. WHITE III*
ERIK M. ZIMMERMAN*
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Tel.: [phone]
Fax: [phone]

* Not admitted in this jurisdiction

Counsel for amicus curiae

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